Jose Felix Alvarado v. State ( 2006 )

Opinion to: SJR TGT SN TJ EVK ERA GCH LCH JB

Opinion Issued May 4, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00259-CR

JOSE FELIX ALVARADO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 771685

MEMORANDUM OPINION

          Appellant Jose Felix Alvarado pleaded not guilty to the charge of murder.  A jury found him guilty, and the trial court assessed punishment at fifty years’ imprisonment.  In one issue, Alvarado contends the trial court erred in failing to allow defense counsel to question a juror during the State’s case-in-chief after the juror requested a sign language interpreter prior to the beginning of testimony. Because Alvarado failed to properly preserve this issue for appeal, we affirm the judgment of the trial court. 

Background

          After the jurors had been sworn, but prior to the beginning of trial, the trial court discovered that one of the jurors had difficulty hearing, and assigned two sign language interpreters to interpret for the juror.  Neither the State nor the defense objected to the juror serving, and both sides announced they were ready for trial.  The State gave its opening statement and presented testimony from four witnesses, and the court recessed for lunch.  When the court reconvened after lunch, defense counsel stated the following:

Your Honor, at this time we’d move to—we’ve learned that there is a deaf juror that was selected during jury selection.  We asked questions relevant to the selection of jurors on this case and we asked whether they understood all the questions.  And we would like—the defense side would like to ask that juror that’s deaf—and I don’t have the name of the juror.  But that juror whether she understood the questions during the voir dire, during the jury selection.  I understand that you’ve denied my request.

The court denied the request.  After closing arguments, and after the jury had been removed to deliberate, the court told defense counsel to “go ahead and make [his] record.”  Defense counsel then stated as follows:

For appellate purposes, Judge, I would object to the—for not allowing me to elicit testimony from a juror—and I don’t know the name of the juror, but it’s a white female. We learned, after being seated as a juror, that she was hearing impaired.  We didn’t learn that—the extent of the impairment.  We did learn that the Court required her to use a—sign language personnel to translate what was verbalized into sign language for her.  I would have asked her if allowed whether she understood the questions during the voir dire jury selection process.  And if she understood the different rules that were propounded to the whole group.  And if she understood those rules and if she would comply with those rules.  And also would have asked her whether she had any medical impairments that would not have allowed her to sit as a juror.  And I don’t know what the answers would have been. But those would have been the questions that I would [sic] asked—and I would have asked.  And those are the questions that the Court has not allowed me to ask of her now that she’s seated as a juror.  That would be the extent of my questioning.

The court stated that reasonable accommodations had been made, that there was no indication the juror was unable to participate in the trial, and that, in the opinion of the court, her impairment was not an issue.

Discussion

          In his sole point of error, Alvarado contends the trial court abused its discretion by failing to allow defense counsel to question the impaired juror concerning the extent of her impairment and whether she understood the questions asked of her during voir dire, thus violating his right to a trial by an impartial jury under the United States Constitution and his right to counsel under the Texas Constitution.  U.S. Const. amend. VI; Tex. Const. art. X, § 1.  The State responds that Alvarado has failed to preserve error on this issue.  We agree.

          To preserve an issue for appeal, a party must timely object, stating the specific legal basis.  Tex. R. App. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 121, 127 (Tex. Crim. App. 1996).  “To be timely, an objection must be raised at the earliest opportunity or as soon as the ground of objection becomes apparent.” Dinkins v. State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995).  This allows the trial court the opportunity to cure any possible harm caused by the objectionable conduct.  See Bader v. State, 15 S.W.3d 599, 603 (Tex. App.—Austin 2000, pet. ref’d).  In the absence of a timely motion or objection, nothing is presented for appellate review.  Cooper v. State, 500 S.W.2d 837, 841 (Tex. Crim. App. 1973).  When the issue concerns voir dire questions, the trial court must be on notice as to the specific question the defendant wanted to ask and was precluded from asking. See Franklin v. State, 12 S.W.3d 473, 477 (Tex. Crim. App. 2000).

          Here, the record indicates that at the very latest, defense counsel became aware that one of the jurors was hearing-impaired prior to the beginning of trial when the trial court announced that it had become aware of an impaired juror and would provide her with sign language interpreters. Though counsel made clear what he would have asked the juror if he had been allowed to question her, he did not do so until well into the State’s case-in-chief.  Thus, we conclude that counsel failed to timely object and no error has been preserved for appeal.

Alvarado argues that his right to a fair trial is a “fundamental constitutional systemic requirement” that cannot be waived.  The Court of Criminal Appeals has held that “[e]xcept for complaints involving fundamental constitutional systemic requirements . . . all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with Rule 33.1.”  Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999).  In 2004, the court revised that language to state “[e]xcept for complaints involving systemic (or absolute) requirements, or rights that are waivable only, . . . all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).”  Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). Alvarado is correct that the right of a defendant to intelligently exercise his peremptory strikes is implicit in the constitutional right of representation under both the state and federal constitutions.  See Shipley v. State, 790 S.W.2d 604, 607–08 (Tex. Crim. App. 1990).  He is incorrect, however, that such a right cannot be waived.  The Court of Criminal Appeals has held systemic requirements to include jurisdictional requirements involving the power of the court over the subject matter or the person, and requirements of due process and separation of powers which render conflicting legislation void.  Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).  The rights at issue here are not systemic, however, because a defendant may waive error when he fails to object to the composition of the jury in a timely manner.  See Franklin, 12 S.W.3d at 477.

Conclusion

Because Alvarado failed to ask the court to question the hearing impaired juror in a timely manner, we hold he has failed to preserve this issue for appeal. Accordingly, we overrule his sole issue and affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Justices Taft, Higley, and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).